ObamaCare has so Many Myths, It's Hard to Know Where to Begin

Cory L. Andrews started with the litigation side of matters, debunking the leading Obamacare litigation myths:

My favorite:

Myth #5: “Judge Vinson declared not just the individual mandate, but the entire ObamaCare law unconstitutional. That shows how radical he is.”This is the myth that will not die. Following Judge Vinson’s ruling in Florida, defenders of ObamaCare seized on the supposed “fact” that he declared the entire law unconstitutional as further evidence that Vinson was an unhinged jurist whose ruling placed him “outside the mainstream.”

Similar reports followed from virtually every media outlet in the country (see here, here, and here). But nowhere did Judge Vinson hold that the entire law was unconstitutional. Rather, he found that only the individual mandate was unconstitutional; yet, because Congress hadn’t bothered to include a severability clause, the entire law was void.

This is an important distinction. Other than the individual mandate, Judge Vinson impugned no portion of ObamaCare on constitutional grounds, nor did he overstep his judicial duty.

Check it out. (Links in original)


Judge Vinson's decision was handcuffed upon him by Congress' failure to include a severability clause so that even if Judge Vinson found every other provision constitutional, the fact that one feature is unconstitutional invalidates the whole 2200 page think.



Read more at the Washington Examiner: http://washingtonexaminer.com/opinion/op-eds/2011/02/dubunking-leading-obamacare-litigation-myths#ixzz1DxkEEbUK

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Some Teachers Accused of Sexual Misconduct Merit Privacy, Washington State Court Rules

I saw this at The School Law Blog last week. In Washington State, some overzealous newspaper wanted to get the names and records of any teacher accused of sexual misconduct, whether such accusations proved true or not.

Of course sexual misconduct by teachers with students is a serious problem. Of couse, those who are found to have engaged in such misconduct should be disciplined and prosecuted accordingly. Of course, the public through the newspapers has a right to know about sexual misconduct by teachers.

However, the last time I looked (and apparently it is changing) we still live in a country where you are innocent until proven guilty. The mere accusation of misconduct would be enough to end an otherwise effective teaching career. Students are getting hip to the idea that the way to eliminate an unwanted to teacher is to accuse that teacher of sexual misconduct. To release the name would be tantamount to placing a scarlet P for pervert on that teacher--effectively ending their career forever.

The Washington State Supreme Court got this one right and the two dissenters are idiots.

Ninth Circuit Reinstates Strip Search Case

In a shocking display of common sense the 9th Circuit Court of Appeals reinstated a lawsuit challenging a school's strip search of a 13-year-old girl, with no prior disciplinary history, based on teh allegation that she gave a classmate an ibuprofen.

The opinion of the 11 judge panel is here.

The ludicrous opinion of the original three judge panel, which said that the search did not violate the girl's rights, is here.

A Nearly 30 Year Woman Evicted From Home Because She is Labeled A Sex Offender

The Atlanta Journal-Constitution writes:

Wendy Whitaker's name may be on Georgia's sex offender registry, but her offense suggests she is no predator.

At age 17, while a high school sophomore, Whitaker had oral sex with a 15-year-old male classmate. In 1997, she pleaded guilty to sodomy and got five years' probation. Whitaker, 28, has moved twice because of the sex offender law's restrictions that say an offender cannot live within 1,000 feet of places where children congregate. Whitaker was recently told by a sheriff she must move again because her home is within 1,000 feet of a church.

"It's a recurrent nightmare," Whitaker said Friday. "It's like a roller coaster. One minute, I'm OK. The next, I'm not. This time, I really thought everything was going to be all right."

Wendy Whitaker is a sex offender under Georgia's sex offender law because at age 17 she engaged in oral sex with a 15 year old boy and had the bad luck to get caught. Right now, I can all but guarantee you, there are teenagers in Georgia having sex. I am willing to be large, very large, sums of money on the notion. It does not make them sex offenders and certainly doesn't make them sex offenders for life.

Whitaker has been evicted from her home because 11 years ago she had sex as a teenager.

Such is the problem of bad legislation. The sex offender law was no doubt intended to prevent actual predatory sex offenders from being near children. But, as in Whitaker's case, the problem is exacerbated because the Georgia sex offender law labels anyone convicted of sex based offense as a sex offender, even if the sex was consensual between two teenagers.

I noted a similar story a couple of years ago, which may have been Whitaker's but the Post story doesn't say. I noted back then

So if two high school kids are caught having sex and charged with a sex crime, under this law not only are they not allowed to live within 1,000 feet of a school, playground, chruch or bus stop, apparently they would also be barred from attending their own high school.

How is that for an absurd result!!!



Whitaker is now suing alleging that the residency restrictions are unconstitutional and that the forced eviction is tantamount to a "taking."

I think the takings aspect is an interesting twist on the case. The sex offender residency restictions prohibits sex offenders from living within 1,000 feet of where children congregate. But Whitaker and her husband own their home, bought in January 2006. The Georgia Supreme Court previously ruled that the sex offender residency restrictions amounted to a taking under the constitution if the sex offender owned a home within the exclusionary boundary. So the Georgia legislature passed a law that said any home bought prior to July 2006 wouldn't apply. The tickle is that Whitaker's name did not appear on the deed to the couple's home until 2007, triggering the local sheriff to give notice that she vacate the house within 48 hours. I would imagine that the reason why Whitaker's name wasn't on the deed was to prevent the triggering of the residency rules.

So the question becomes now, after July 1, 2006, if a sex offender buys a house that is outside the exclusionary zone and then a church, a school or a school bus stop is built or designated within 1,000 feet of the home, is it a taking? I would argue yes, although less so for the church since that is usually a private entity buying the land.

But this whole legal think leaves unaddressed, is Wendy Whitaker really a sex offender? Simply put, based on her past, no--she isn't. I think clearly there needs to be a provision in place where people can petition to be let off the list, particularly in cases like Wendy Whitaker, what really is her crime? Consensual oral sex as a teenager? She was on probation until she was 22, five years after her crime. Six years later, she is still paying for it? Is this really justice?

Bikini Clad Appearance On Howard Stern's Show Gets a Teacher Sacked

From Overlawyerd:

Second grade teacher Marie Jarry called in sick one day to her job at the Southington, Ct. public schools, which perhaps was not strictly accurate, since the next day she and her husband won first prize in a “Hottest Wife, Ugliest Husband” contest on the Howard Stern show. Now she’s suing over being pressured to resign from her job; school authorities invoked a school “morality clause” and were really mean about the little sick day fib (The Smoking Gun, Jun. 27, with copy of complaint).

Look, as I have said before, the wisdom of doing these type of things by teachers is debatable. But to invoke a morality clause and force a resignation is not a bright idea by the school district.

Jarry is not the first, nor will she be the last, person to take a sick day and do something else while not being actually sick. Let's assume for a moment that the school district fired her for taking a sick day without being sick. Should her punishment be losing her job? What if she had taken a vacation day and done this? What if she had taken a sick day and gone to the beach in this bikini?

What Jarry did was neither illegal or immoral but simply unwise. She did not take off her clothes, she probably wears the bikini to the pool, the lake or the beach. The bikini is neither too small or too vulgar, indeed, based on the pictures at the Smoking Gun, it is relatively modest as bikinis go. What what is the immorality that is being invoked here? Is it the fact that she appeared on the Howard Stern show, where Stern was no doubt into his usual on-air crass self?

This to me illustrates the danger of "morality clauses." It is one thing to invoke a morality clause as the reason for termination if their is a conviction for an illegal act. But Jarry cannot be charged or convicted of appearing on a radio or TV show that has bad taste. But the larger question is whether teachers should be held to such a "higher standard" that they give up some of their otherwise normal rights. Jarry has a right to wear this bikini. She has the right to appear on Howard Stern's show. So the question really is, what is the standard of morality that we are trying to uphold? More importantly, who gets to determine that standard?

In the end, Jarry will no doubt get a settlement since I don't think that there is much legal ground for the school district's actions.

Facial Challenges vs. As Applied Challenges

This article in ABA Journal seems to give the impression that the Roberts Court is not particularly interested in constitutional facial challenges to state laws, instead favoring as-applied challenges. David Savage noted that in a number of recent cases, invovling matters as diverse as election laws and lethal injection matters, the Court has rejected a broad attack on state laws.

The national legal director of the American Civil Liberties Union says the opinions signal a basic shift in litigating constitutional claims. “It’s important to understand this is a fundamental departure from what the court has done over the past four decades to protect civil and constitutional rights,” says Steven R. Shapiro of New York City.

As a point of comparison, he cites Harper v. Virginia Board of Elections, the 1966 decision that struck down the poll tax.

“The court in Harper didn’t say, ‘Bring us someone who cannot afford $1.50 and we will strike down the law as applied to those persons.’ They struck down the law on its face because it was about suppressing votes, not about protecting the integrity of the elections,” Shapiro says.

I am not sure that is necessarily the case that facial challenges are unfavored.

I think that cases will turn on the facts of the case and the nature of the right being asserted. The more fundamental a right, the more likely a facial challenge will be heard. But that still doesn't obviate the need to find a real plaintiff and that, I think, is where some of these "facial" challenges fail. I think some of the recent "facial" challenges of late failed on the notion of real injury of a real plaintiff, not a formulated or contrived plaintiff. In Harper, for example, on the face of the statute, it would appear that the poll tax was intended to help pay the costs of an election. But the law itself was not uniformly applied and was disproprotionately imposed on minorities, i.e. poor whites were often exempted from the law. It was the unequal application of the law that led most directly to its downfall.

I also think that the ACLU and other "rights" organizations are hitting a limit as to what the courts will find acceptable fodder for litigation. There are real injuries out there, but sometimes, the ACLU and others take matters a little too far in asserting "rights" that etiher, a) don't exist or b) are reasonably limited by statute. There is also a limit to the Constitutional rights that can be enforced through these kinds of facial challenges to state laws.

Justice Dept. Sued Over Political Bias

But the question is can they prove their claim?

G-String Causes Eye Damage

and a lawsuit. It is not quite what you think, but it is sort of humorous nonetheless.

Via Drudge

Student Wins Injunction to Wear 'Be Happy, Not Gay' T-shirt at School

From The School Law Blog:

A federal appeals court has ordered that an Illinois student be allowed to wear a T-shirt that says "Be Happy, Not Gay" to protest the annual Day of Silence in support of gay students.

A three-judge panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, unanimously rejected arguments from the Indian Prairie school district in suburban Chicago that it should be able to bar a student from wearing the shirt on the school day after the Day of Silence because it would be derogatory and offensive to some students.

" 'Be Happy, Not Gay' is only tepidly negative; 'derogatory' or 'demeaning' seems too strong a characterization," U.S. Circuit Judge Richard A. Posner said in the opinion for the court in Nuxoll v. Indian Prairie School District No. 204. "As one would expect in a school the size of Neuqua Valley High School, there have been incidents of harassment of homosexual students. But it is highly speculative that allowing the plaintiff to wear a T-shirt that says 'Be Happy, Not Gay' would have even a slight tendency to provoke such incidents, or for that matter to poison the educational atmosphere."

"Speculation that it might is, under the ruling precedents, and on the scanty record compiled thus far in the litigation, too thin a reed on which to hang a prohibition of the exercise of a student’s free speech," the judge added.

Good to know that not all speech is slaughtered on the alter of political correctness. If observance of the day of silence is protected speech it goes to follow that a counter-protest is likewise protected speech. But alas, logic is not something found in great quantity in public schools when it comes to speech rights.

Report on Davis v. FEC

Lyle Denniston at SCOTUSblog has a report on the Davis v. FEC case heard at the Supreme Court yesterday. As Denniston puts it, the Justices seemed to be unable to muster sympathy for either side, the self-funded candidates or the Congressional effort.

In fact, so much doubt had been expressed about the so-called “Millionaire’s Amendment” that the Justices seriously explored what, if any parts, of it could be salvaged.

The part of the law that seemed most in jeopardy gives opponents of self-financing candidates a chance to call on a political party for a lot more financial support — even though that is denied to the wealtheir candidates themselves. Also, a provision compelling self-financed candidates to make repeated public disclosures about their spending seemed to be in some trouble, too.

The reason for the pervasive skepticism during the hour-long argument in Davis v. Federal Election Commission (07-320) was that several of the Justices voiced concern that Congress might have been trying to influence the content of the political messages that get conveyed during a congressional campaign — a potential First Amendment problem. A move by Congress to “level the playing field” appeared to be interpreted as a reach to control those messages. Most tellingly, Justice Samuel A. Alito, Jr., questioned whether Congress in enacting the Amendment genuinely intended to stop the corrupting influence of money in politics — the only rationale the Court has accepted for campaign finance regulation.

To be honest, I had not considered the increases party spending matter. Under the campaign finance laws, a candidate can only get a limited amount of coordinated party expenditures (although the party can make unlimited independent expenditures on behalf of a candidate). An opponent of a self-funded candidate can get more party suppport, which means that outside agents (the parties themselves) are subject to different rules--a sort of equal protection argument by proxy.

The public disclosure rules are probably toast--it is the most clear cut equal protection argument out there. Whether other provisions get struck down is a little bit more of an open question. As I noted before, the whole Amendment, can be attacked on equal protection grounds, but also on the grounds that if Congress' goal is to limit the influence of so-called "special interest" money in politics, increasing the contribution limits for one candidate seems like an illogical method of accomplishing that goal.

Prof. Hasen thinks that the Court will strike some parts of the law and uphold others.

The Center for Competitive Politics report notes suprise in Justice Kennedy's line of questioning regarding the party coordinated expenditures as well as the fact that the Court seemed to dismiss what many commentators thought was Davis' weak standing argument. But if the Justices are pre-disposed to consider the increased disclosures as the injury, such a move to ignore the standing issue is not surprising.

Bob Bauer doesn't have any post-argument comments up yet, but his pre-argument post which included this comment:

Here is irony: if the Amendment can be traced to soft money at all—and if soft money is broadly defined to mean all money raised and spent beyond the law’s established limits—then the Amendment legalized a form of "soft money." Now a candidate with a millionaire opponent could qualify for a special limit, elevated well above the one within which other candidates have to operate. This is the only other choice on hand for describing of this law: either it has nothing to do with soft money, or if it does, it authorized for certain candidates, with certain opponents, access to a freshly created class of soft money donations.

Bauer presented this in context of commenting on this article.

A transcript of the hearing is here.

Millionaire's Amendment Case Next Week

The Supreme Court will hear the millionaire's amendment case next week, and in advance, MSNBC has a pretty good article on the subject. What is ironic about the millionaire's amendment is how closely it is tied to McCain-Fiengold and it was not an amendment that McCain authored. But leaving aside that quirk, Davis v. FEC will focus on the Millionaire's amendment as it applies to House candidates only, but a successful challenge to the House portion will spell the imminent doom to the Senate provisions (which are a bit more complex).

Davis’ appeal raised two questions: whether the “Millionaire’s Amendment” violates the First or Fifth Amendment in attempting to “equalize resources” between House candidates, and whether, if that goal is a valid one, the specific financing provisions achieve that goal. In responding to the appeal, the Federal Election Commission told the Court that the case involves a third critical issue: did Davis have “standing” to bring his lawsuit? FEC contended that he did not, because he had identified no actual or imminent harm to his candidacy. Rep. Reynolds, it noted, did not receive any increased contributions or coordinated party spending under the Amendment, so there was no injury to Davis’ campaign. The FEC also suggested that the case may be moot – another factor that could deny the Court jurisdiction.

The Supreme Court on Jan. 11 took on the case, but noted explicitly that it would not decide whether it had jurisdiction until it held a hearing on the merits.

In law school I wrote a paper on the Millionaire's Amendment that focused on potential treatment of the provision based upon the Court's previous jurisprudence regarding contribution limits and the prevention of corruption or the appearance of corruption.

As for previous cases regarding limits, I don't think the Court would be concerned. The Millionaire's Amendment increased contribution limits and the Court had previously ruled that it would not interfere with a legislatures determination of a contribution limit unless that limit was so low as to prevent a candidate from being able to raise funds to run a viable campaign. (This was pre-Sorrell that I wrote the paper). With more money available, striking down the increased limits on that ground wouldn't fly.

But the Court had also noted that it would not probe the legislatures decisions on different limits unless the limits amounted to a difference in kind. Here there would be more punch to an argument against the Amendment since it would be readily apparent that one candidate would be operating under one limit and another under a limit three times the size of the first. Even a candidate who is self-funding is permitted to raise money from other contributors.

There is a rather obvious equal protection argument present in the different limits matter, but I didn't make that argument due to a lack of space (we had a pretty strict page limit to deal with). But it seems patently obvious that forcing one candidate to operate under different rules simply because he exercises a personally protected right while permitting another to operate under different rules presents a parity question.

The primary, indeed only reason, the Court has upheld contribution limits is to prevent corruption or the appearance of corruption of the candidate due to large campaign contributions. Whether the reasoning of Buckley still applies is a matter of some dispute. In 1976, the average cost of a House of Representatives campaign was about $80,000. The maximum contribution from an individual at that time was $1,000 per person per election or $5,000 from a PAC. Thus a person could "max out" at $2,000 or about 2.5 percent of a campaign cost and a PAC could max out at $10,000 or 12.5 percent of a total campaign. Those are sufficiently high enough amounts that the appearance of corruption could be present (I don't but it completely, but at least statistically I can see it.). Today a political campaign for a House seat will run about $1 million. A maxed out individual contributor can give $4,600 or about 0.46 percent. A PAC can give about 1 percent.

Under the increased limits for candidates facing millionaires, the max limit is $6,900 for an election. (If a candidate faces a millionaire in the general, he can only raise increased funds for the general election, not the primary and general). Not only is there a difference in kind, but it seems to increase the appearance of corruption by the simple operation of a higher limit.

More fundamentally though, the Millionaire's Amendment treats personal wealth and political wealth differently. Under the campaign finance law, a candidate, usually and incumbent can raise money at any time and they usually do, building massive war chests which are used to scare off opponents. The Millionaire's amendment does nothing to offset that advantage. But even these politically rich candidates can raise money under increased limits if their self-funded candidate outspends them. (The amendment limits the increased contribution limits fundraising until the non-self-funded candidate achieves parity with the millionaire). Thus a candidate who is not self-funded facing an incumbent with a $5 million war chest must raise money at the standard limit--putting them at a severe disadvantage.

Davis is focusing on a slightly different provision. Under the Millionaire's amendment, each time the self-funded candidate spends over a certain amount, he or she must make an initial disclosure of exceeding certain thresholds. For the House candidate, the threshold is $350,000 for the initial disclosure. Then when the candidate spends another $10,000 or more, he/she must make an additional disclosure within 24 hours. Davis has argued that the additional reporting requirements force him to disclose strategic and financial information before his opponent was required to do so. For example, if Davis spent $50,000 of his own money, he would have to disclose that. But if his opponent spent $50,000 out of his campaign war chest, he would not be required to report that until the regularly scheduled reporting time.

The increased reporting requirement is a pretty good argument since I think it would encompass as least a real injury and it sufficiently raises the equal protection argument. However, it is rather limited and might be grounds for the Court to simply strike the increased reporting requirement and leave the limits question for another time and another case.

However, in the Sorrell aftermath, there may be sufficient support among the Justices to put an end to the non-sense of such increased regulation of political spending. In general, I think a strict and relatively immediate disclosure law would be sufficient. Absent that, I have had other thoughts, which can be read here that would serve to limit the pre-occupation fundraising, including treating personal and political wealth in the same manner.

"A Flood is a Flood"

so says the Louisiana State Supreme Court in a ruling on a case involving insurance coverage for homes damaged in the Wake of Katrina, the levee breach and a massive case load.

The Louisiana Supreme Court on Tuesday rejected arguments that homeowner insurance policies should have covered damages caused by levee breaches during Hurricane Katrina, saying the disaster clearly involved a "flood" not covered by such policies.

The state's high court reversed decisions by state trial and appeals courts that said the definition of the word "flood" was ambiguous in New Orleans resident Joseph Sher's hazard insurance policy with Lafayette Insurance Co.

snip

The high court ruled that Sher's homeowner policy was not ambiguous in excluding coverage for a flood. The court said the lower courts should have looked at the "plain, ordinary and generally prevailing definition" of the word "flood."

"Contrary to the court of appeal's reasoning, this definition (of 'flood') does not change or depend on whether the event is a natural disaster or a man-made one -- in either case, a large amount of water covers an area that is usually dry," the Supreme Court opinion said.

'A flood is a flood'

Justice Chet Traylor of Winnsboro, writing the majority decision, went a step further, saying the flooding in New Orleans after Hurricane Katrina was not caused by man, only aided by human errors.

"The flood was caused by Hurricane Katrina, not by man," Traylor wrote. "The levees did not cause the flood, they, whether through faulty design, faulty construction, or some other reason, failed to prevent the flood."

No homeowners insurance policy I know of covers flood damage. That is why when you live in an area prone to flooding, you get flood insurance from the federal government. If you live in an area that is under sea level, you are foolish to not have flood insurance.

Of course, one wonders if these people will attempt to sue the Army Corps of Engineers and/or any companies tasked with maintaining the levees. Based on this excerpt of the opinion, it would appear that such a suit might be more successful, if the plaintiffs can prove negligence.

Shock Me, Shock Me, Shock Me With That Deviant Behavior

A California court that issued a ruling that California kids could only be homeschooled by parents with teaching credentials will revisit the case.

I know, shocking huh.

The California appellate court that recently appeared to outlaw home-schooling in California has now agreed to rehear the case, raising hopes among home-schooling supporters that the court will revise its ruling.

"Because this ruling impacts all Californians, we believe the case deserves a second look," said Gary McCaleb, an attorney with the Alliance Defense Fund, which asked the 2nd District Court of Appeal for a rehearing of the case, "In re: Rachel L."

Home-schooling advocates nationwide were outraged with the appellate court's unanimous Feb. 28 ruling that ordered two parents to send two of their children to school — as the children requested, through their lawyer — instead of home-schooling them.

Unpublished court papers show that the family has been involved in the child welfare system for 20 years, amid charges of physical abuse by the father and sexual molestation of several of the daughters by a family friend.

The court-appointed lawyer for the two youngest children, aged 10 and 8, recommended to a juvenile court judge that he order the children sent to school for their own education, safety and well being.

The judge sympathized with the children — their home-schooling was "lousy," he wrote — but he refused to order them sent to school because he believed their parents had a right to teach their children as they saw fit.

The children's lawyer appealed, and the appellate court ruled in their favor: Since the children's mother did not have the required "valid state teaching credential for the grade being taught," she could not teach the children at home, the appellate court said.

But the appellate court also opined that under California's Education Code, "parents do not have a constitutional right to home school their children."

This blanket statement, which appeared to criminalize home-schooling in California, roiled home-schoolers and their allies, and sent politicians to the microphones to defend parents' rights to teach their children. California Gov. Arnold Schwarzenegger promised that the law would be fixed.

Looking at the facts as they are presented here, it would seem that the Appeals judge just over-reacted. It happens.

Interesting---

A lawsuit because banks backed out of a financing deal. Seems like a pretty straightforward breach of contract, but when dealing with a $22 billion dollar deal, nothing is straightfoward.

ACLu Sues Florida School District Over Graduation Rates

From Palm Beach County:

Low graduation rates in Palm Beach County show the school district has failed its students, especially minority children, by not providing a "uniform, efficient, safe, secure and high-quality education," according to a lawsuit filed Tuesday by the American Civil Liberties Union.

The lawsuit addresses a topic never before challenged in the courts. The ACLU and other organizations have sued school districts for not distributing resources equally, but no group has pursued legal action for dismal graduation rates.

"We're really making a more basic point," said Chris Hansen, a senior staff attorney with the ACLU. "Graduating from high school is virtually the minimum requirement for success. A large percentage of the students are being essentially written off."

The suit alleges that the district is violating students' rights to a high-quality education as outlined in the state constitution.

According to state calculations, 71.8 percent of students across the county graduated on time last school year, up from 66 percent in 2003 but slightly below the state average.

The rate is higher than five of the other six largest "urban" school districts in the state, including Miami-Dade and Broward counties. Only Hillsborough County, at 79.1 percent, had a higher rate.

But the graduation rates drop off among the county's black and Hispanic students. While more than 80 percent of white students graduated on time in the county last year, only about 55 percent of black students and 64 percent of Hispanic kids did, according to state statistics. snip

The suit calls for the school district to improve the graduation rates among students in every racial group, students who qualify for the school lunch program and English-language learners. It also calls for the school district to adopt a more-accurate method for calculating graduation rates.

A qquick legal word here, just because a suit has been filed, doesn't mean that it will keep going. I expect the school district will move to dismiss the case for lack of standing by teh plaintiffs or for failure to state a claim which can be resolved by the courts.

Gradutaion rates contain a troubling disparity between racial groups, there is no denying teh hard data. But a lawsuit is a particularly poor way of going about addressing the issue, but the ACLU has no other tactical reserve. In short they don't know how to operate any other way.

Suing the school district because some students are failing is not an issue for the courts to decide. Furthermore, how is teh court to fashion a remedy for the plaintiffs--make the school pass the students? I don't think that a court can do that if the student doesn't meet the criteria, nor do I think a judge will think it prudent for him to do so, even if it were possible?

Finally, I would assume that the school district is working hard (as it must under federal and state law) to address the issue. What is the court supposed to do, tell the school district how to do its job?

I think the ACLU is flat wrong on this and is wasting valuable court time on a suit that should be dismissed out of hand.

Heller v. DC is at the Supreme Court Today

In what is one of the most anticipated cases all term, the Supreme Court will hear oral arguments in Heller v. DC today. Randy Barnett a Georgetown law professor and author of an amicus brief, has a column in todays Wall Street Journal about the case.

He makes a couple of interesting points about what will likely be a 5-4 decision (and just so you know, no not all Supreme Court Decisions are a 5-4 split). The one point that I like (and have talked about before) is:

The Second Amendment protects an individual right. In the 1960s, gun control advocates dismissed the Second Amendment as protecting the so-called "collective right" of states to preserve their militias -- notwithstanding that, everywhere else in the Constitution, a "right" of "the people" refers to an individual right of persons, and the 10th Amendment expressly distinguishes between "the people" and "the states." Now even the District asserts the new theory that, while this right is individual, it is "conditioned" on a citizen being an active participant in an organized militia. Therefore, whoever wins, Heller won't be based on a "collective" right of the states.

I have argued that it is somewhat ludicrous to look at the Bill of Rights and see that the First Amendment is a series of individual rights and protections as are Amendments 3 through 9. The Tenth Amendment distinguishes between states and people. So how it is that the Framers stuck a "collective" right into the Second Amendment.

Keep in mind, the Bill of Rights was a condition of ratification for a number of states. There were concerns about the power of the new national government and a fair number of leaders, namely the Anti-Federalists, but a few others, felt that a Bill of Rights, laws that prohibited the national government from infringing upon the rights of the People were necessary. Read the Preamble to the Constitution, it read "We the People... do ordain and establish."

Now for a little esoterica. The Constitution is nothing if not a contract between the People of the United States and the Government they created. The contract gives the Government certain rights to do certain things and prevents them from doing other things. For example, the People decided that having and Army and a Navy were good things, but things that individuals and even states are not equipped or capable of doing. The same thing with a Postal System (although obviously less true today), or immigration laws. But the People also decided, by ratifying a Bill of Rights, that the government was not permitted to do other things, like prohibit the freedom of speech or quarter soldiers in someone's home (that was a big problem in pre-Revolutionary times) or have an unwarranted serach and seizure. So the People created a Constitution, between themselves and the govnerment that provided for the rights and obligations of each--a contract.

One of the most basic principles of contract interpretation, indeed so basic that law students learn within the first few weeks of law school, is to look at the words on the page. What do they say and what do they mean. Certain inferences based on the words of the page are also relevant, but they must derive logically from the actual words.

So it is a logical step to say that the Second Amendment, when looked at from the perspective of all the other Bill of Rights--individual rights save the 10th Amendment, which distinguishes between individual rights and states' rights, and come to the conclusion that the Second Amendment is a collective right? It just seems to strain the logic and hangs too much upon an anachronism--of a militia. Keep in mind, in the late 18th Century, the militia was not nearly as regulated as you might think--particularly in comparison to our National Guard of today.

At any rate, there will be a great of discussion and parsing of the oral arugments. A decision is likely in June.

Future Litigation

Jack Balkin takes us into a fictional Supreme Court opinion in Spitzer v. United States (not a real case in case you were wondering), which gives constitutional protection to patronize prostitutes.

It is based, not unreasonably on Lawrence v. Texas, which defined a "sexual liberty."

Hey, if prostitution were legal and that is how you wanted to spend your money, then go ahead. I would say that you had that sexual liberty. Your spouse might not think so, but as far as the state is concerned, you can do so.

Interesting reading.

Hat Tip: The Instapundit.

'Text-Only' Web Obscenity Case Attracts National Attention

Intersting free speech/free press issue and obscenity. The question seems to be whether or not text only websites can be obscene.

The two motions to dismiss presented a strict scrutiny argument and said obscenity laws should not be applied to text where no pictures were involved. Walters said there hasn't been a case that has applied obscenity laws to text since the U.S. Supreme Court refined the test for obscenity in its 1973 case Miller v. California.

The three-pronged Miller test requires that an average person using contemporary community standards would find that the work only appeals to prurient interests, that it depicts sexual conduct as defined by state law and that it lacks "serious literary, artistic, political or scientific value," according to court documents.

Walters said Conti denied his motions to dismiss based on a 2005 ruling by the 3rd U.S. Circuit Court of Appeals in U.S. v. Extreme Associates Inc.

The legal standards in Miller are more than a little squishy (as most Supreme Court tests are). I am not sure if obscenity has been defined as visual media only, i.e. pictures, video, etc., exempting text. I don't think the bar for literary value is very high, but there is a problem.

Apparently these stories by teh defendant depict in words the kidnap and rape of under age characters. But what makes that different from any other work for fiction that depicts the kidnap and rape of characters--the mere fact that one character is underage. We are talking about fictional characters here not real live persons. Posting of pictures or video would probably not pass muster, but have we really gone so far down the high horse morality that we are now offended by mere words?

Election Administrators Just Can't Win

Just when you thought election related litigation couldn't get any sillier, the ACLU steps up to do just that. The ACLU of OhioACLU asked a federal judge to block the March 4 Ohio primary in Cuyohoga County (Cleveland to me and you) if the county switches to paper ballots.

The lawsuit argued that the proposed paper-ballot system would violate voters' constitutional rights because it doesn't allow them to correct errors on ballots before they are cast.

"The evidence is overwhelming that when voters do not have access to technology that notifies them of ballot errors, many more ballots are left uncounted," said Meredith Bell-Platts, a voting-rights attorney with the ACLU.

So let's see, if I have all of this straight.

First, the ACLU and other didn't like machines to count ballots because the machines could be tampered with and therefore could disenfranchise voters. Second, we got machines that included a way for voters to make sure the machine accurately tabulated their votes. Third, for whatever reason (probably a lawsuit of some sort), Cuyohoga County has to revert to a paper ballot.

Now, the paper ballot is presumably filled out by a voter before submission. What the ACLU seems to be saying is that the average voter is too stupid to check for themselves to see if their ballot has any errors without a machine to tell them.

I'm sorry, but if that is the case, then we as a nation are in deep trouble when it comes to voting.

Oh, and if the ACLU wins and the county has to use the new computerized machines, you can bet that if something goes wrong the ACLU will sue again.

Kucinich Wins Injunction to Appear in Nevada Debate

Generally, news agencies I think should have the power to control their own content, that is at the heart of the First Amendment. While I think it is generally up to the network, like MSNBC to determine what will appear on their programming, I generally don't think it is a good idea to exclude presidential candidates--but that is purely a business sense rather than a constitutional concern. MSNCB has planned a Democratic debate this evening and invited just Hillary Clinton, Barak Obama and John Edwards to the event. Democratic gadfly Dennis Kucinich was not invited and he threw a snit and sued to get onto the stage: And won!! Senior Clark County Judge Charles Thompson and threatened to cancel the event if Kucinich is not included. The network has vowed to appeal to the Nevada Supreme Court today in order to control their content.

I would say that MSNBC has a strong case for themselves, despite the presidential overtones. They do have a First Amendment right to control their news content. They are not using the airwaves (being a cable provider means that they don't have an FCC license and associated "public service" needs).

For Kucinich, this keeps his name in the papers but for not very good reasons.